TMI Blog2022 (1) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not the income of the assesse. If at all any addition of cash income is required to be made, that can be made in the individual capacity of the director. Indeed the addition of cash investment has been made in hand of Shri Pravinchandra Patel and therefore, no addition in the present case is warranted. Thus the ground of appeal of the assessee allowed. Addition being unexplained expenses on basis of seized paper - Whether entire unaccounted receipt should be added or only the profit element after adjusting the expenses against such unaccounted receipt should be added as income in the hands of the assessee? - HELD THAT:- There is no dispute to the fact that the land was acquired by the assessee dated 12th January 2012 and its commercial activities were commenced from July 2013. In other words, there was no activity carried out by the assessee in the year under consideration. Thus the question arises can there be any addition for the unexplained expenditure incurred by the assessee on account of undisclosed income. In the present case, there cannot be any possibility for the assessee for having any unaccounted income in its hands for the year under consideration. It is for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness of the parties - HELD THAT:- The assessee has discharged its onus by furnishing the necessary details such as a copy of PAN, bank details, and ITR etc. in support of identity of the parties, genuineness of transaction and creditworthiness of the parties. Admittedly the AO has accepted the identity and genuineness of transaction but doubted the credit worthiness of the parties. However the learned CIT(A) held that the assessee has discharged the primary onus cast under section 68 of the Act and onus shifted on the AO to prove otherwise based on contrary materials on record. Third condition, i.e. creditworthiness of the parties, regarding this we note that the assessee has refunded the amount through banking channel to all the parties.The repayment of the loan amount by the assessee was duly accepted by the Revenue. Thus there remains no doubt that the transaction of the advance received by the assessee from the parties was genuine. In our considered view, once the assessee is able to prove that the money received by it was returned in the subsequent assessment year in the account of the party, then there remains no doubt that the advances received by the assessee were une ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive basis in the hands of directors - HELD THAT:- Once the addition on substantive basis representing the investment in cash by the another director namely Shri Pravin C Patel has been made by us in the AY 2014-15, there cannot be any other addition either in the hands of M/s Neotech Education Foundation or other directors on substantive/protective basis. Payment of ₹ 1 and 1.98 crores represents the application of the income added in the hands of Shri Pravin Patel. As such, the investment of Rs. 1 crores and 1.98 crores has been made out of the addition made in the hands of Shri Pravin Patel for Rs.3,97,37,485/. Thus if any addition is sustained in the hands of any other party, that would lead to the double addition which is not desirable under the provisions of law - Decided in favour of assessee. Treating the agriculture income as income from other sources - HELD THAT:- Admittedly, if the assessee is showing the agricultural income, then it is the onus upon him to produce the necessary evidences to justify such income. Indeed, the assessee has furnished the certificate from the Gram Panchayat. But to our considered view such certificate cannot replace the primary d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... until and unless other documentary evidences are brought on record. In view of the above we do not incline to uphold the finding of the authorities below. Accordingly we set aside the order of the learned CIT-A and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed. Unexplained investment - AR before us submitted that the payment of Rs.5.11 Lacs was paid to the banking channel and therefore no addition is warranted - HELD THAT:- We note that the assessee failed to provide the details of bank or cheque from where fund was transferred. Indeed, the primary onus lies upon the assessee to produce the necessary evidences in support of amount paid. The assessee was afforded enough opportunities to bring the necessary details on record during the assessment and remand proceedings.Thus, in view of the above we hold that the assessee failed to discharge the onus imposed upon him under the provisions of section 69B of the Act. Hence, we are not inclined to interfere in the order of learned CIT-A., thus the ground of appeal of the assessee is dismissed. Deposits in the ICICI bank account of the assessee - HELD THAT:- The revenue h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out in the Sigma Group of cases and consequent searches at the residential premises of assessee-directors, are inter-connected, we have heard all these appeals together and proceed to dispose of them by way of this consolidated order. 2. First we take ITA No.135/Ahd/2019 in the case of Neotech Education Foundation for the Asstt.Years 2012-13. In this appeal, the assessee has raised the following grounds: 1.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A), has erred in confirming the re-opening of the assessment u/s 147/148 of the Act and thereby not holding the order u/s 143(3) r.w.s. 147 of the Act as bad in law. (Para 35.2 on page 120 of the Ld. CIT(A)'s order). 2.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs.1,98,00,000/- on substantive basis as unexplained investment u/s 69B of the Act and also erred in holding and directing the Id. AO that the said amount be taxed on protective basis the hands of Shri Pravinchandra Patel and also in the hands of all the directors of the appellant as their joint and several liabilitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act as bad in law. (Para 39.1 on Pg 127 referring to Para 35.2 on page 120 of the Ld. ClT(A)'s order). 2.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs.1,00,00,000/- on substantive basis as unexplained investment u/s 69B of the Act and also erred in holding and directing the Id. AO that the said amount be taxed on protective basis the hands of Shri Pravinchandra Patel and also in the hands of all the directors of the appellant as their joint and several liabilities. (Para 39.2 and 39.3 on page 127/128 of the Ld. CIT(A)'s order). 8. Revenue s ground of appeal in ITA No. 194/AHD/2019 for A.Y. 2014-15 Ground No.1 On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.1,35,00,OOQ/-on account of unexplained investment u/s 69B of the I. T. Act, when the seized document itself proves that the assessee had made investment of Rs.1,35,00,000/- (altogether Rs.5,68,00,000/- for different years) in the purchase of land for A.Y.2014-15. 9. The facts in brief are that the assessee in the present case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 158 was containing the details of the cheque payment made by the assessee against the purchase of land which was duly signed by the recipient as well as the director of the company namely Shri Praveen Patel. The breakup of the cheque payment stands as under: 205 50 + 40 40 40 35 12/1/12 15/5/12 18/7/13 18/7/14 18/7/15 106 22 + 21 21 21 21 12/1/12 15/5/12 15/7/13 18/7/14 18/7/15 120 24 + 24 24 24 24 12/1/12 18/5/12 15/7/13 18/7/14 18/7/15 51 11 + 12 10 11 7 (document pending) 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready been disclosed by the directors in their individual capacity. Accordingly, the assessee contended that there cannot be any further addition to the total income on account of such cash payment as alleged by the AO. However, the AO was disagreed with the contention of the assessee on the reasoning that the payments made through the banking channel were matching with the records of the assessee. Therefore, he was of the view that the cash payment appearing in the year under consideration represents the unaccounted investment of the assessee. Merely, there was no signature against the other cash payment except the cash payment of Rs.2.98 crores, cannot be a ground to reach to the conclusion that there was no cash payment made by the assessee. Moreover, it is a prevalent practice with respect to the cash transactions to keep the records of such transaction without the signatures and in short form until and unless the transactions are settled. Once, the cash transactions are settled, these records are scrapped. The contention of the assessee that business activity was not started hence there was not any source of income is not accepted for the reason that land was purchased by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the fact whether there was any element of cash in the transaction of the purchase of the impugned land. 17. The provisions of section 132 (4A) of the Act does not deal with the presumption of income rather it provides the presumption with respect to the ownership of the assets found during the search. Further it provides the presumption about the contents of the books of accounts and documents, signature, handwriting and execution of the documents. The necessities for the presumption of income are contained under the provisions of section 68 to 69D of the Act. Thus the presumption provided under section 132 (4A) of the Act does not affix any liability on the assessee with respect to the income. In other words, the provisions of section 132 (4A) of the Act cannot be used to hold any item as income in terms of the provisions of section 68 to 69D of the Act. As such, it is the onus of the revenue to bring out the necessary evidence to hold that the assessee has made investments in the impugned land which is unexplained under the provisions of section 69B of the Act. Likewise, the contents of the email having attachments of page 157 and 158 were found from the personal laptop of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent dates is summarized as under: i. The AO in his remand report submitted that the email dated 22nd July 2014 containing the seized documents was impounded from the director, namely Shri Manish Shah of the assessee company. The director is not a different person to the assessee company. Therefore there is a presumption under section 132(4A) of the Act that the documents belong to the assessee and its contents are true. ii. The directors of the assessee company have admitted in the course of search to have purchased the land for the construction of the campus which is also evident from the seized document bearing page No. 158. The land was purchased from Shri Shashikant Patel. The signature of Shashikant Patel was very much appearing on the seized document bearing page No. 158. Similarly the seized document bearing page No. 157 of annexure A1 was containing the schedule for the cash payment which was also signed by Shri Shashikant Patel, the vendor of the land and the director of the assessee company Shri Praveen Patel. Thus, the documents seized in the course of survey belongs to the company and not with the directors in his individual capacity. iii. The conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also corroborating from another seized documents bearing page 33 of A-3. Accordingly, the ld. CIT-A confirmed the addition of Rs. 1.98 crores and 1 crores for A.Y. 2012-13 and 2013-14. The learned CIT(A) also added the same amount in the hands of Director Shri Parvinchandra Patel on protective basis and also same addition was made on protective basis in the hands of all the director jointly. However, the addition of Rs. 1.35 crores each in A.Y. 2014-15 and 15-16 was deleted by the ld. CIT (A)on the reasoning that these payments were not crossed or singed by either by the director or by the vender. There is also no corroborating material found as like first two payment of Rs. 1.98 and 1 crore respectively. Therefore, the learned CIT (A) deleted the same. Being aggrieved by the order of the learned CIT (A), both the assessee and Revenue are in appeal before us. 22. The learned ARbefore us filed a paper book running from pages 1 to 80 and reiterated the contentions made before the Authorities below. 23. The learned DR before us vehemently supported the stand of the authorities below by reiterating the findings contained in the respective orders which we have already adverte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AY 2014-15 AY 2015-16 Total Shri Pravinchandra R. Pate - 3,000,000 1,900,000 4,900,000 Smt.Anauyaben P. Patel - 1,000,000 - 1,000,000 Shri Manish B Shah - - - 7,000,000 Shri Dipali M Shah - - - - Shri Preet P Patel 4,400,000 5,841,600 9,000,000 9,241,600 Total /s (Rs.) 4,400,000 9,841,600 10,900,000 32,141,600 26. We also find that during the survey at the premises of assessee, another paper bearing page number 35 of annexure A-3 was found where it was noted that till 28th February 2014 the assessee has received fund amounting to Rs.3,97,37,485/- in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed whereas Revenue ground of appeal for A.Y. 2014-15 is dismissed. 29. Next issue raised by the assessee in ground no. 3 and 4 is that the learned CIT(A) erred in confirming the addition of Rs. 39,12,000/- being unexplained expenses on basis of seized paper bearing page 33 of annexure A-3. 30. At the outset we note that the issue on the hand is interconnected with issue raised by the assessee in ground 1 to 5 of its appeal for the A.Y. 2014-15. Therefore we proceed to adjudicate the issue in the year under consideration jointly with the issue raised by the assessee in A.Y. 2014-15. The relevant ground of appeal of the assessee for the A.Y. 2014-15 reads as under: 1.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs.59,45,153/-as unexplained expenditure u/s 69C of the Act. (Para 21.4 on page 105 of the Ld. CIT(A)'s order). 2.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs.50,14,8000- as unaccounted cash receipts (Para 22.1 on page 106 of the Ld. CIT(A)'s order). 3.0 On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining in A.Y. 2014-15. 32. The assessee in response to such notice submitted that it came into existence dated 24th of November 2011 whereas the land was acquired dated 12th January 2012 for the construction of its campus for providing education. Likewise its activities i.e. providing education were commenced from July 2013. Thus, it becomes evident that it did not had any source of income till financial year 2013-14 i.e. A.Y. 2014-15 which could have been utilized for incurring the impugned expenses. Accordingly, in the absence of any source of money in the hands of the assessee, it was not possible for it to incur any expense in cash and that too without recording the same in the books of accounts. The seized document bearing page number 33 of Annexure A-3 is a dumb document which not containing its name (assessee) neither signed by any authorized person nor dated. Therefore, the same is not reliable document as there was not any corroborative material found during search and survey proceeding with respect to impugned page no-33.It was purposed to treat compartment No. 1 ,2 and 6 as expenses and compartment number 3, 4 and 5 as receipt whereas no such specification is written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee that there was no evidence indicating that the impugned expenses were incurred in the A.Y. 2012-13 is not tenable. It is for the reason that these land levelling expenses were possibly be incurred right after the acquisition of the land. Thus, the expenses were incurred in the A.Y. 2012-13. Furthermore, the assessee has not brought anything on record suggesting that these expenses were incurred in any other financial year. 34.1.4 The assessee, being an artificial juridical person, its activities have to be governed/controlled by the individuals who are the directors of the company. Since, the land was purchased and developed by the assessee, therefore amount of cash payment without recording in the books of accounts cannot be treated as income in the hands of the directors. Accordingly, the cash expenses are treated as unexplained expenditure under the provisions of section 69C of the Act. 2nd Compartment 34.1.5 This compartment was shown under the heading accounts not closed till date . There were appearing names of various parties beginning from serial Nos. 24 to 46 and the serial number 47 was for the salary before 3rd August 2012 and up to 30th June 2013. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Compartment 34.1.7 This compartment was shown below the serial numbers 49 to 52 of seized document bearing page No. 33 of annexure A3. Under this compartment, there were entries of loan received from GhanshayamVGandhi and repayment of the same along with the interest by the directors/from the receipt of management quota. These entries, were not recorded in the books of accounts of the assessee. Therefore the same treated as unexplained cash credit of Rs. 2,85,22,606/- and added to the total income of the assessee. 6 th Compartment 34.1.8 In the 6th compartment it is found that the assessee has incurred various expenses in cash out of the fee received by it under management quota as recorded in 4th compartment at serial No. 51. The amount of expenses of ₹ 53,06,500/- was exactly matching with the management quota as recorded in 4th compartment actual No. 51. The impugned expenses were not recorded in the books of accounts. Accordingly the same was treated as unexplained expenditure under section 69C of the Act and added to the total income of the assessee. 35. In view of the above, the AO has made the addition based on seized paper bearing page No. 33 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded against the page number but the AO treated such amount as unaccounted receipt of the assessee though nothing was recorded under such head suggesting that it represents the unaccounted receipt. Furthermore, there was no date appearing on such seized document and therefore it was not possible to ascertain the year to which these transactions were pertaining to. But, the AO has made the additions in different assessment years i.e. A.Y. 2012-13 and 2014-15 without any justification. Thus the action of the AO for making the addition based on the seized document bearing No. 33 of annexure A-3 is based on the surmise and conjecture without having any corroborative materials. iv. In the absence of any specific date recorded in the seized document, it is difficult to connect the entries shown therein to a particular financial year whereas the provisions of section 69C refers to any financial year in which the assessee has incurred the expenditure but failed to explain the source of the expenditure. As such in the given facts and circumstances it is not possible to connect the entries recorded in the seized documents to a particular financial year. Thus, in such facts and cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arranted. V. Compartment No. 5, unaccounted receipts and unexplained expenditure from management quota of Rs. 53,06,500 in the assessment year 2014-15. The assessee submitted that a sum of Rs.7.9 Lacs out of the above addition of Rs.53,06,500/- has already been made in the hands of Shri Manish B Shah in the assessment year 2014-15. Therefore no such addition can be made in the hands of the assessee. The assessee repeated the contention made by it in the general arguments which have been elaborated in the preceding paragraph. VI . Compartment No. 6, addition for the loan received from and its repayment to Shri Ghanshyam V. Ghandi for Rs. 2,85,22,600/- in the assessment year 2014-15. There were appearing certain entries of the loan taken and repaid along with the interest to Shri GVG on the seized document bearing No. 33. However, the AO has selected view of the entries after ignoring certain other entries and reached to an amount of Rs.2.85 crores without any cogent reasons. However, the assessee worked out the breakup of Rs. 2.85 crores as detailed under: Alleged amount taken in cash from GVG but considered as income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 3 June 2014 which was duly recorded in the books of accounts. Likewise, the learned CIT(A) found that the assessee has taken loans of Rs.17.5 Lacs and 11.5 Lacs from Shri Ghanshyam Patel/ Shri Jivabhai Patel collectively and Shri Hemant Patel which were recorded in the books of accounts. Thus the learned CIT(A) deleted the addition of Rs.45 lacs (amount should be Rs. 44 Lacs but inadvertently mentioned Rs. 45 lacs inCIT-A order) in aggregate and confirmed the balance amount of Rs.37.12 Lacs (right amount is of Rs. 39.12). 43. With respect to the addition made by the AO under the 2nd compartment ACCOUNTS NOT CLOSED TILL DATE, the learned CIT(A) found that there is a presumption under section 292C of the Act in favour of the revenue which is a rebuttable presumption. But the assessee has not brought anything on record suggesting that the amount shown as payable does not correspond to the expenses incurred by it. Thus, the learned CIT(A) confirmed the addition made by the AO for Rs. 59,45,153/-. Likewise, the learned CIT(A) also found that the assessee has not brought anything on record suggesting that the impugned addition have been made in the hands of Shri Manish Shah. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 48. With respect to the addition made by the AO under 6th compartment for Rs. 53,06,500/-being unaccounted receipt and its expenses, the learned CIT(A) found that it represents the unaccounted receipt as noted in compartment no.4 at S. No. 51 PAID BY PREET VIA MQ . However the AO not made the addition of this amount in compartment 4 as aggregate amount of expenses noted in compartment 6 are exactly of the same value. Hence only one addition either being unaccounted receipt or expenses has been made. During appellate proceeding, the assessee failed to justify why addition should not be sustained. Thus, the addition was confirmed by the learned CIT(A). 49. Being aggrieved by the order of the learned CIT (A), the assessee is in appeal before us. The assessee is in appeal against the direction of the addition for Rs. 39.12 Lacs and Rs. 3,84,61,253/- for the AY under consideration and for the AY 2014-15. 50. The learned AR before us filed a paper book from pages 1 to 284 and filed written submissions running from pages 1 to 15 which are available on record. The learned AR for the assessee before us reiterated the submissions as made before the authorities below. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The authority below at one hand treated the alleged cash expenses as income of the assessee on reasoning that the assessee failed to explain the source of money to incur such expenses. On the other hand the authorities below also treated some of the item noted in the same seized paper as unaccounted receipt of the assessee. To our understanding once revenue itself admitted that the assessee has some unaccounted income then it is justifiable to presume that the assessee should have incurred impugned unaccounted expenses out of the unaccounted income. Hence no addition should have been made against expenses separately otherwise same will lead to double addition which is prohibited under the provision of the law. 54. Now the question arises can entire unaccounted receipt should be added or only the profit element after adjusting the expenses against such unaccounted receipt should be added as income in the hands of the assessee. In this connection, we find that there are plethora of judgment by various competent court that in case of any unaccounted business receipt found in the hand of the assessee then only the amount of profit element in such business receipt should be brought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been sourced out of unaccounted receipts recorded in the same seized document. 57. At this juncture, it is equally important to deal with the situation that what would be the position if the receipts have been utilized by the assessee for the capital expenditures or the revenue expenses have been incurred out of the capital receipts. In either of the case, the transactions were not recorded in the books of accounts. As regards the receipts, the additions cannot be made under the provisions of section 68 of the Act. It is for the reason that the provisions of section 68 of the Act are applicable with respect to the transactions recorded in the books of accounts. As regards the expenses in the given facts and circumstances, the provisions of section 69C of the Act cannot be applicable as the source of the expenses is emanating from the same seized document. In other words, one of the precondition for attracting the provisions of section 69C of the Act is that the assessee failed to justify the source of the expenses. However in the given case, the source of the expenses is not in dispute. Accordingly, we are of the view that only option available work out the income from the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors of the company have incurred the expenses on behalf of the company. As such, the assessee cannot be made subject to addition on account of unexplained expenditure of Rs. 39,12,000/- in the year under consideration. 59. As we have adjudicated the issue raised by the assessee after applying the concept of telescoping, we refrain ourselves from adjudicating the other questions recorded hereinabove for the purpose of the decision. Thus the ground of appeal of the assessee is partly allowed. 59.1 In the result appeal of the assessee is partly allowed. 60. Coming to ITA No. 136/Ahd/2019 and appeal by the assessee for A.Y. 2013- 14. In this appeal, the assessee has raised the following grounds: 1.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A), has erred in confirming the re-opening of the assessment u/s 147/148 of the Act and thereby not holding the order u/s 143(3) r.w.s. 147 of the Act as bad in law. (Para 39.1 on Pg 127 referring to Para 35.2 on page 120 of the Ld. ClT(A)'s order). 2.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) has erred in confirming the addition of Rs.50,14,8007- as unaccounted cash receipts (Para 22.1 on page 106 of the Ld. CIT(A)'s order). 3.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs. 16,83,500/- as share application money received but not accounted in books. (Para 23.5 on page 109 of the Ld. CIT(A)'s order). 4.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs.53,06,500/- as unexplained receipts and unaccounted expenses. (Para 24.2 on page 110 of the Ld. CIT(A)'s order). 5.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the addition of Rs. 2,05,11,300/- as undisclosed and unexplained income. (Para 25.6 on page 113 of the Ld. CIT(A)'s order). 6.0 On the facts and in the circumstances of your appellant's case and in law, the Ld. CIT (A) has erred in confirming the disallowance of Rs.1,50,000/- u/s 40(a)(ia) of the Act. (Para 27 on page 115 of the Ld. CIT(A)'s order). 7.0 On t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggrieved assessee preferred an appeal to the learned CIT (A) who confirmed the addition made by the AO by observing as under: (i) Excess depreciation claim Rs.7,00,000/-: 28. The detailed discussion in this regard appears at pages 17 to 22 of the assessment order. The AO noted that the assessee had claimed depreciation @ 10% on the building and on verification of the seized material (specially pages 83 to 145 of Anexure A-l/1) from Neotech Technical Campus at \1rod found that certain invoices (as tabulated on page IS 19 of the assessment order) aggregating to Rs.1,36,53,389/- were raised but cash of Rs.1,40,00,000/- was received back from contractors as evidenced by Page No.55 of Annexure Al (as reproduced on page 2O of the assessment order). Page No.55 of Annexure Al is in the handwriting of MsDhruvi Pandya, the CFO of the Group who stated in her statement that these noting related to contract bills and payments and that actual payment made and cash received back, and therefore not repeated here. The AO also noted that payments of Rs.lcrore were made twice and after making actual payment of Rs.40 lakh and Rs.20 lakh to the contractors, Rs.60 lakh and Rs.80 lakh wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2003-IT(Inv.II)has instructed the revenue authority to make addition in search proceeding only in the basis of material found instead of mere admission. The relevant extract of the instruction reads as under: Instances have come to the notice of the Board where assessees have claimed that they have been forced to confess the undisclosed income during the course of the search seizure and survey operations. Such confessions, if not based upon credible evidence, are later retracted by the concerned assessees while filing returns of income. In these circumstances, such confessions during the course of search seizure and survey operations do not serve any useful purpose. It is, therefore, advised that there should be focus and concentration on collection of evidence of income which leads to information on what has not been disclosed or is not likely to be disclosed before the Income-tax Department. Similarly, while recording statement during the course of search seizure and survey operations no attempt should be made to obtain confession as to the undisclosed income. Any action on the contrary shall be viewed adversely. 76. Admittedly, the information gathered during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue raised by the assessee in ground 2 in ITA No. 135/Ahd/2019 for A.Y. 2012-13 where we have decided the issue against the Revenue vide paragraph Nos. 24 to 28 of this order. For, the detailed discussion, please refer the above paragraph. Hence, the ground of appeal of the Revenue is dismissed. 83. The second issue raised by the Revenue is that the learned CIT (A) erred in deleting the addition made by the AO for Rs. 1,62,44,073/- representing the unexplained cash credit under section 68 of the Act on account of lack of creditworthiness of the parties. 84. The AO found the assessee in the year under consideration has taken loan from 13 parties amounting to Rs. 1,62,44,073/-. However the assessee during the assessment proceedings failed to file the necessary documentary evidence to justify the impugned loans on the parameters specified under section 68 of the Act, accordingly the AO treated the same as an unexplained cash credit and added to the total income of the assessee. 85. Aggrieved assessee preferred an appeal to the learned CIT (A). 86. The assessee before the learned CIT (A) submitted that all the loans are received through the banking channel. Likewise, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the transactions in accordance with the provisions of section 68, and thereafter the onus has shifted to the AO to prove the transactions to be otherwise. The same has not been done by the AO. Relying upon the decision of the Hon'ble High Court of Gujarat in CTT vsChanakya Developers (supra) and in absence of any contrary evidence brought on record, I hold that the addition of Rs.1,62,44,073/- cannot be upheld. The AO is directed to delete the addition and the appeal on this ground succeeds. 88. Being aggrieved by the order of the learned CIT (A), the Revenue is in appeal before us. 89. Both the learned DR and the learned AR before us vehemently supported the order of the authorities below as favourable to them. 90. We have heard the rival contentions of both the parties and perused the materials available on record. The provision of section 68 of the Act fastens the liability on the assessee to provide the identity of the lenders, establish the genuineness of the transactions and creditworthiness of the parties. These liabilities on the assessee were imposed to justify the cash credit entries under section 68 of the Act by the Hon ble Calcutta High Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the payment to the assessee as well as repayment of the loan by the assessee to the depositors is made by account payee cheques and the interest is also paid by the assessee to the creditors by account payee cheques. 93. Thus there remains no doubt that the transaction of the advance received by the assessee from the parties was genuine. In our considered view, once the assessee is able to prove that the money received by it was returned in the subsequent assessment year in the account of the party, then there remains no doubt that the advances received by the assessee were unexplained cash credit. 94. Similarly, we also note that the assessee in respect of all the parties out of the parties as discussed above has furnished the sufficient documentary pieces of evidence including the details of the income of the parties. Therefore in our considered view, the assessee has discharged its onus imposed under section 68 of the Act. 95. In view of the above, we do not find any infirmity in the order of Ld. CIT (A). Hence the ground of appeal of the revenue is dismissed. 96. The issue raised by the assessee in ground 3 and 4 of its appeal are general in nature he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 2012-13 and 2013-14 are inter-related and common to each other. Therefore, for the sake of brevity and convenience, we have clubbed all these appeals of the Revenue together for the purpose of adjudication. The facts of the case as appearing in IT(SS)A No. 69/AHD/2019 have been adopted for the decision which are given hereunder: 106. The Revenue in IT(SS)A No. 69/AHD/2019 for the assessment year 2009-10 has raised the following grounds of appeal: 1. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.13,111/- on account of disallowance of deduction under Chapter VI-A, by not appreciating the fact involved in this case and holding that no incriminating material was found during search for A.Y,2009-10 and hence the proceeding for A.Y.2009-10 remained unabated. 2. On the facts and in the circumstances of the case and in law, the td. CIT(A) has erred in deleting the addition of Rs.4,52,29,955/- on account of unexplained credit entries in the bank accounts, by not appreciating the fact involved in this case and holding that no incriminating material was found during search for A.Y.2009-10 and hence the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act for Rs. 1,43,111/- only. 2. Addition of credit in bank account under section 68 of the Act. For the AY 2011-12 1. Disallowances of deduction claimed under chapter VI of the Act for Rs. 15,000/- only. 2. Addition of credit in bank account under section 68 of the Act for Rs. 3,31,56,223/- only. 3. Unexplained investment for purchase of land at Rs. 2,77,000/- only. For the AY 2012-13 1. Disallowances of deduction claimed under chapter VI of the Act for Rs. 15,000/- only. 2. Addition of credit in bank account under section 68 of the Act for Rs. 3,14,86,703/- only. 3. Disallowances of agricultural income claimed as exempt for Rs. 1,89,810/- only. 4. Addition under section 50C of the Act for Rs. 3,58,51,000/- only. For the AY 2013-14 1. Disallowances of deduction claimed under chapter VI of the Act for Rs. 1,15,000/- only. 2. Addition of credit in bank account under section 68 of the Act for Rs. 7,73,50,390/- only. 3. Disallowance of agricultural income claimed as exempted for Rs.1,98,000/- only. 109. The AO has made the additions of the above amount in different assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of above regular items cannot be sustained as per the law laid down by the Hon ble courts and directed to delete the addition made in different assessment years. 114. With regard to addition of Rs. 2,77,000/- made in A.Y. 2011-12 on account of unexplained investment, the learned CIT(A) held that though this addition was based on seized documents, however, the assessee has submitted cash flow statement showing the availability of having cash from his known/disclosed sources of income. The submission of the assessee cannot be rejected merely on surmises and conjecture without pointing out any defect in cash flow statement especially in circumstances where assessee is a man of means and disclosed healthy amount of income throughout all the AYs in the income tax returns. Accordingly, the learned CIT(A) deleted the addition made by the AO. 115. Similarly, the learned CIT (A) also deleted the addition of Rs. 3,58,51,000/- made under section 50C of the Act by holding that the information received from the office of registrar about the stamp value of land, which is higher than the sale consideration, cannot be termed as incriminating material for unabated assessment years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch or requisition, namely, in relation to material disclosed during the search or requisition. If in relation to any assessment year, no incriminating material is found, no addition or disallowance can be made in relation to that assessment year in exercise of powers under section 153A of the Act and the earlier assessment shall have to be reiterated. 121. In view of the above, there remains no doubt that there cannot be any addition of the regular item with respect to the unabated/completed assessment years until and unless such documents of incriminating nature are found in the course of search proceedings. 122. Admittedly, all the cases before us are completed/unabated assessment years. The assessee for all the years have filed the return of income under section 139(1)/139(4) of the Act and the time limit for issuing notice under section 143(2) of the Act have already been expired. Thus, the returns filed by the assessee for all the years have reached to finality and therefore the same can be disturbed if there was some document of incriminating nature found during the search proceedings with respect to the year under consideration. However, we find that the AO has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elated thereto were found during the search/survey in the Group. In absence of such finding, the credit entries in this account cannot be held to be unaccounted/undisclosed and added to the total income in the proceeding u/s 153 A The addition made in the assessment is required to be dismissed and the submissions made on the merits of the issues are not required to be gone into and adjudicated. The addition of Rs.4,58,29,955/- as per the assessment order (or/and Rs.4,58,29,955/- as per the subsequent rectification order) is directed to be deleted. The appeal succeeds on this ground. 124. The above finding of the learned CIT (A) has not been controverted by the learned DR appearing on behalf of the Revenue at the time of hearing. Thus in view of the above we can hold that there was no incriminating document found/seized during the search proceedings and therefore the concluded/unabated assessment years cannot be disturbed. 125. Coming to the addition made by the AO of Rs. 2,77,000/- for the assessment year 2011-12, in this connection we note that the investment shown by the assessee is of negligible amount considering the income declared by the assessee in different assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The only issue raised by the assessee in both the AYs is that the learned CIT (A) erred in making the protective addition of Rs. 1 croreand 1.98 crores on account of unexplained investment. 130. At the outset, we note that the addition of Rs. 1 crores and 1.98 crores on account of unexplained investment was made on substantive basis in the hands of M/s Neotech Education Foundation and protective basis in the hands of directors. The assessee is one of the director in M/s Neotech Education Foundation. It was alleged by the Revenue that there was the cash payment against the purchase of land by M/s Neotech Education Foundation which was not recorded in the books of accounts. In this regard, we find that once the addition on substantive basis to the tune of Rs.3,97,37,485/ representing the investment in cash by the another director namely Shri Pravin C Patel has been made by us in the AY 2014-15, there cannot be any other addition either in the hands of M/s Neotech Education Foundation or other directors on substantive/protective basis. In other words, the payment of ₹ 1 and 1.98 crores represents the application of the income added in the hands of Shri Pravin Patel. As suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of 7/12 form. However, the AO was not satisfied with the 7/12 form filed by the assessee to justify the agriculture income. As per the AO, the assessee was expected to furnish the details of the crop produced, sold and the expenses incurred in connection with the production of the crop. But the assessee failed to furnish the same. Therefore the AO treated the entire amount of agriculture income declared by the assessee for Rs. 4,48,600/- as income from other sources. 136. Aggrieved assessee preferred an appeal to the learned CIT-A. 137. The assessee before the learned CIT (A) submitted that he along with wife has in his possession substantial agricultural land of 32 vigha where the cash crop such as cotton and tuvar was produced during the year which was sold in the open market. The assessee also furnished the details/information of the crop cultivated in different assessment years in different pieces of land. The assessee in support of his contention has also filed the certificate from the head of Dena Gram Panchayat of Vadodra District where such land is situated which evidences that the cash crop was cultivated. In the light of the above details, the assessee contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural income, then it is the onus upon him to produce the necessary evidences to justify such income. Indeed, the assessee has furnished the certificate from the Gram Panchayat. But to our considered view such certificate cannot replace the primary documents such as the details for the cultivation of the crop, details of the sales and the expenses incurred for the production of the crop. Such certificate is secondary piece of evidence. 145. However, the assessee failed to bring any primary evidence. Nevertheless, this fact is also not in dispute that the assessee is in possession of agricultural land along with his wife aggregating to 32 Vigha. Accordingly, the fact of possession of land and the Gram Panchayat certificate cannot be brushed aside in view of the fact that part of the agriculture income has been admitted by the learned CIT-A. Considering the size of the agricultural land and interest of justice and fair play we are of the view that justice will be served to the revenue and the assessee if 50% of the total agriculture income is treated as income from the agricultural activity and the remaining 50% is treated as income from other sources in the given facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hai credited in HDFC bank account submitted that the amount was received against some transaction. But the assessee is unable to trace the party as of now. 153. On the contrary the learned DR before us vehemently supported the order of the authorities below. 154. We have heard the rival contentions of both the parties and perused the materials available on record. It is the trite law that the primary onus lies upon the assessee to justify his stand. Thus, it was the duty of the assessee to explain the source of credit entries appearing the bank account to the tune of Rs.26,63,386/- only. 155. As regards addition of Rs.8,386/-, we note that the assessee has submitted that it represents the transfer from the other bank maintained by him. Admittedly, the internal transfer of the fund does not represent the income. But it has to be proved based on the documentary evidence. However, we note that the AO in his remand report has submitted that he is not able to arrive at the clear conclusion after seeing the bank statement that amount represents the internal transfer of fund. The comment of the AO in the remand report, which has been relied upon by the learned CIT-A, does not app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r details. Hence requesting you to please inform the remitter (Party name) details of the above payment made to me. Matter is very urgent and hence request you to inform ASAP. My email ID is: pravinpatel78@yahoo.co.in Thanks and regards, Sd/- Pravinchandra R. Patel 158. Thus, in view of the above we hold that the assessee failed to discharge the onus imposed upon him under the provisions of section 68 of the Act. Hence, we are not inclined to interfere in the order of learned CIT-A. 159. As regards to the addition of Rs.180,000/-, we again note that the assessee has not furnished the necessary details in support of the bank entry of Rs.1.80 Lacs. It was the onus of the assessee to furnish the identity, creditworthiness and genuineness of the transaction. But we note that the assessee failed to do so. Accordingly we do not find any reason to deviate from the finding of the authorities below. Hence the ground of appeal of the assessee is partly allowed. 160. The issue raised by the assessee in ground No. 3 is that the learned CIT(A) erred in confirming the addition made by the AO for Rs.3,97,37,485/- as unexplained loans/investments in M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducation Foundation. Thus, the addition has been made by the AO based on surmises and conjecture by holding that the loans/investments was extended/made in the Neotech Education Foundation. 164. The assessee alternatively also submitted that if alleged investment presumed to be made in cash by him in Neotech Education Foundation. Then setoff of income already shown by way of brokerage income in cash along with the other assessee who are forming the part of the group amounting to Rs.3,21,46,600/- in different assessment years should be provided. As such cash income was available with the assessee for investment. 165. The assessee without prejudice to the above further contended that he has already shown surplus of cash in the regular books of accounts along with the group in different assessment years amounting to Rs. 81,05,565/- only. As per the assessee, such cash amount was available with him for making the impugned investments and therefore, the same should be adjusted with the alleged amount of cash invested in Neothech Education foundation. 166. The assessee also submitted that there was protective addition of Rs. 2.98 crore made in its hand on account of on money pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been claimed as disclosure of unaccounted income by the appellant). Not only thevSe, but other additions in relation to undisclosed income/unaccounted receipts made in the assessment order and being confirmed in this appeal order are available in the hands of the appellant to be set off as being applied/appropriated towards the undisclosed expenses/unaccounted payments which have been added in the assessment order and by themselves, each item may have been held unexplained in this appeal order. 21.6 I would not be fair if I do not mention that I note that the cases in the Neotech Education Foundation Group (specially of the appellant and M/s. Neotech Education Foundation) have not been represented well during the assessment proceedings and the seized documents and the transactions contained therein were not properly explained to the AO. The submission during the appellate proceedings before me also has not been up to the mark as is evident that the appellant has taken various additional grounds and arguments subsequently (and very late in the proceedings) and they were in piecemeal which I cannot concede to at this stage unless the AO is given opportunity to examine them ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the addition was made by the authorities below. The 1st question that arises for adjudication whether the document bearing No. 35 of Annexure A-3 for the purpose of the addition is a dumb document. Admittedly, there was not only the amount of cash but also the transaction of banks were recorded in the seized document i.e. containing the date and the cheque numbers of the bank account maintained by the assessee. The bank entries were duly matching with the bank account of the assessee. These bank entries were representing the payment made by the assessee to M/s Neotech Education Foundation which were classified as unsecured loan by M/s Neotech Education Foundation in its books of accounts. It was not also contended by the assessee that the bank entries are the dumb documents. Thus, to the extent of bank entries, there is no iota of doubt on the genuineness of such transactions which were recorded in the same seized document where amount of cash without any details was mentioned at ₹ 3,97,37,485/ only. It is the trite law that seized documents should be read as a whole and not in piecemeal to reach to the logical end. In holding so we draw support and guidance from the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX (ii) that the contents of such books of account and other documents are true; and 173. Indeed, the presumption as provided above is rebuttable and the onus lies upon the assessee to rebut such presumption based on the cogent reasons as discussed above. However, we note that the assessee has not brought any plausible reason before us against the finding of the learned CIT (A) insofar the presumption of the contents are concerned. Accordingly we conclude that such document is an important piece of evidence which can be used for computing taxable income of the assessee. Accordingly, we conclude that the amount of cash invested in M/s Neotech Education Foundation of Rs.3,97,37,485/ represents the unaccounted income of the assessee. 174. However, we note that the assessee along with the group has already disclosed income in the income tax returns for the different assessment years in cash by way of brokerage income aggregating to Rs.3,21,41,600/- crores which is undisputed fact. The relevant of such disclosure stands as under: Name of assessee AY 2013-14 AY 2014-15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members have earned cash income and declared the same as brokerage and there is no finding that such cash income has been utilized for any other purpose. In other words, the cash income disclosed by the assessee was available for the impugned investment in cash. Thus to our considered view, the adjustments to the extent of the cash income declared by the assessee along with the group should be made against such cash investments. 176. Before parting, we also note that there was the surplus of cash available with the assessee in different assessment years and nothing was brought on record by the revenue suggesting that this cash available in the books of accounts has been utilized for any other purpose. Thus in the absence of any contrary information about the cash available with the assessee in the books of accounts, it could be inferred that such amount in cash has also been utilized for the purpose of making the investment in cash M/s Neotech Education Foundation. Thus, to our understanding the regular cash available with the assessee for Rs. 81,00,065/-, as submitted before us by the assessee, should also be adjusted against the addition of the impugned investment in cash of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contains the position of investment made by the assessee in cash as on 28 February 2014 and it does not establish the fact that this cash income was generated by the assessee in the year under consideration. Thus, in the absence of necessary information, we can safely presume that this income was earned by the assessee over the period of time which was invested inM/s Neotech Education Foundation over the period. We are presuming so for the reason that there is no other information available on record except that the cash income of Rs.3,97,37,485/ was invested in M/s Neotech Education Foundation. 179. In view of the above and after considering the facts in totality, we direct the AO to allow the adjustments for Rs. 3,21,41,600/- and Rs. 81,00,065 lacs against the addition made by him for the investment in cash in M/s Neotech Education Foundation for Rs.3,97,37,485/ only. The adjustment of Rs. 81,00,065/- is subject to verification. Effectively, if the availability of cash for Rs.81,00,065/- is found based on the documentary evidence, there cannot be addition of any income in the hands of the assessee. Hence the ground of appeal of the assessee is partly allowed in terms of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r recall of this order. Such application should be filed within the time period prescribed in the Act 185. In the result, the appeal of the Revenue is dismissed due to low tax effect. 186. Coming to ITA No. 299/Ahd/2019, an appeal by the assessee for A.Y. 2015-16. 187. The assessee has raised the following grounds of appeal: 1.0 On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in treating agriculture income to the extent of Rs.4,50,000/- as income from unexplained other sources. (Para 22.1 on page 156/157 of the appellate order). 2.0 (a) On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in confirming addition as unexplained credits to the extent of Rs.33,50,000/- in various banks on the ground that for various deposits alleged as received from parties onus u/s 68 has not been discharged by the appellant. (Para 22.5 on page 158/159 of the appellate order). (b) On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in confirming addition u/s 68 of the Act as unexplained credits to the extent of Rs.33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f entries in the bank account. The learned CIT (A) also called for the remand report from the AO on the details filed by the assessee. The learned CIT (A) after considering the remand report held that the assessee failed to discharge the onus cast under section 68 of the Act for the amount aggregating to ₹ 33.50 Lacs credited in HDFC bank which is detailed as under: S. No. Party name Amount 1. Shri SachinAshokbhi Patel Rs. 6.5 Lacs 2. Shri RavibhaiRashikbhai Patel Rs. 7.5 Lacs 3. Smt. Archnabenkantibhai Patel Rs. 6 Lacs 4. Shri Manish I Patel Rs. 1 Lacs 5. Smt. DevarshiVipul Thakkar Rs. 12.5 Lacs 192. Thus the learned CIT (A) was pleased to confirm the addition of Rs.33.50 Lacs. The ground of appeal of the assessee was partly allowed. 193. Being aggrieved by the order of the learned CIT (A), both the assessee and Revenue are in appeal before us. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied the same by issuing notice under section 133(6) of the Act. But we note that the authorities below have not exercised such powers. Accordingly, we are not impressed with the finding of the authorities below to the extent of the loan shown by the assessee for Rs. 27 Lacs. Accordingly, we set aside the order of the learned CIT-A and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is partly allowed. 199. With respect to the issue raised by the revenue, we find that the AO in his remand report has not pointed out any defect with respect to the onus imposed upon the assessee under the provisions of section 68 of the Act. Accordingly we are of the view that, once the assessee has discharged the onus by furnishing the necessary details then the onus is shifted upon the revenue to reject the submission of the assessee based on the cogent reasons. But we note that the AO failed to exercise the powers conferred under the provisions of section 133(6)/131 of the Act by issuing notices upon the loan parties for taking the confirmation. The learned DR at the time of hearing has also not brought anything on record contrary to the finding of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land for Rs.l,00,00,000/- from one Shri Aas Mohammed Pathan. It is case of the appellant that the land was purchased vide Deed dated 24/09/2014 (FY 2014 related to AY 2015-16) and that post dated cheques were issued to the Seller out of which, till date only Rs.37,50,OOO/- out of appellant's bank account has been encashed by the Seller. In the Remand Report dated 16/08/2018, the AO has noted that the dates of cheques except one dated 30/04/2012 (of Rs.8,00,000/-) are after the date of execution of purchase deed and has held that the claimed payment of Rs.37,50,OOO/- is not towards purchase of land and therefore, investment of Rs.50,00,000/- made by the assessee remains unexplained. 22.7 I have examined the details and find that the purchase deed mentions receipt of Rs.1,00,00,000/- by the Seller without mentioning the details (break up and mode) of such receipts. Thus the appellant cannot say that the considerations are being paid subsequent to registration of sale deed and by post dated cheques. However, during the appellate proceedings the appellant was required to furnish a confirmation from the Seller as to the actual receipt so far and also a certificate/ confirmati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DR before us vehemently supported the order of the authorities below. 208. We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the present case relates whether assessee has made payment from the unaccounted sources for the purchase of the property along with his wife. As per the assessee, total value of the land stands at Rs.1 crores only. Part of the same has been paid for Rs.37.50 Lacs and the balance amount is still remaining outstanding. Payment for the amount of Rs.37.5 Lacs was made after withdrawing the money from the bank. However, the AO did not believe the contention of the assessee for the reason that there was no evidence available with the assessee suggesting that money after withdrawal from the bank was paid to the vendor. It was also alleged by the revenue that as per sale deed dated 24 September 2014, the entire amount of payment should have been made by the assessee before the registration of sale deed whereas the payment has been made by the assessee post registration. This finding of the authorities below can create a suspicion about the fact that the assessee has made the payment from undisclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee to justify his stand. Thus, it was the duty of the assessee to explain the source of amount which was utilised for making token money for purchase of land. We note that the assessee failed to provide the details of bank or cheque from where fund was transferred. Indeed, the primary onus lies upon the assessee to produce the necessary evidences in support of amount paid. The assessee was afforded enough opportunities to bring the necessary details on record during the assessment and remand proceedings.Thus, in view of the above we hold that the assessee failed to discharge the onus imposed upon him under the provisions of section 69B of the Act. Hence, we are not inclined to interfere in the order of learned CIT-A., thus the ground of appeal of the assessee is dismissed 214. In the result, the appeal of the assessee partly allowed. 215. Coming to the ITA No. 392/AHD/2019, an appeal by the Revenue for A.Y. 2015-16. 216. The Revenue has raised the following grounds of appeal: 1. On the facts and in the circumstances of the case and in law, the ld.CIT(A) has erred in deleting the addition of Rs.2,89,30,469/- (wrongly mentioned actual Rs.4.30 crores) as unexplain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-14 223. The only issue raised by the assessee in both the AYs is that the learned CIT (A) erred in making the protective addition of Rs. 1 crore and 1.98 crores on account of unexplained investment. 224. At the outset we note that the addition of Rs.1 crores and 1.98 crores on account of unexplained investment was made on substantive basis in the hands of M/s Neotech Education Foundation and protective basis in the hands of directors. The assessee is one of the director in M/s Neotech Education Foundation. It was alleged by the Revenue that there was the cash payment against the purchase of land by M/s Neotech Education Foundation which was not recorded in the books of accounts. In this regard, we find that once the addition on substantive basis to the tune of Rs. 3,97,37,485/ representing the investment in cash by the another director namely Shri Pravin C Patel has been made by us in the AY 2014-15, there cannot be any other addition either in the hands of M/s Neotech Education Foundation or other directors on substantive/protective basis. In other words, the payment of ₹ 1 and 1.98 crores represents the application of the income added in the hands of Shri Pravin Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... represents the application of the income added in the hands of Shri Pravin Patel. As such, the investment of Rs.1 crores has been made out of the addition made in the hands of Shri Pravin Patel for Rs.3,97,37,485/. Thus if any addition is sustained in the hands of any other party, that would lead to the double addition which is not desirable under the provisions of law. 230. In the result appeal of the assessee is allowed. 231. Coming to IT(SS) No 28/Ahd/2019 an appeal by the assessee for A.Y. 2014-15 232. The assessee has raised following grounds of appeal: 1.0 On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in treating agriculture income to the extent of Rs. 2,00,000/- as income from unexplained other sources and further erred in holding that this addition shall invite consequences of Sec. 115BBE of the Act. (Para 16,3 on page 74 of the appellate order). 2.0 On the facts and in the circumstances of your appellant's case and in law, the Id. CIT (A) has erred in confirming addition as unexplained credits to the extent of Rs.2,68,063/- in ICICI Bank on the ground that appellant has failed to give the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated the entire amount as unexplained cash credit under section 68 of the Act and added the same to the total income of the assessee. 236. Aggrieved assessee preferred an appeal to the learned CIT (A) who partly confirmed the addition made by the AO during the assessment proceedings. As per the learned CIT (A) there was the credit entry of Rs. 2,68,063/- in the ICICI bank account of the assessee dated 23rd July 2013 which was claimed by the assessee as redemption of the mutual fund. But the assessee failed to produce any documentary evidence justifying that the impugned amount of credit entry of Rs. 2,68,063/- represents the redemption of mutual fund. Likewise, there was the credit entry of Rs.25,000/- in the bank account of the assessee as on 8th March 2014 which was claimed by the assessee account opening fund transfer from RBS bank account no. 574901. However, the assessee failed to produce any documentary evidence in support of his contention. Therefore the learned CIT (A) confirmed the same. Hence the ground of appeal of the assessee was partly allowed by the learned CIT (A). 237. Being aggrieved by the order of the learned CIT, the assessee is in appeal before us. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the learned CIT(A) erred in confirming the addition made by the AO for Rs.1 crore on protective basis ignoring the fact that there was no addition made on substantive basis in the hands of M/s Neotech Education Foundation in the year under consideration. 244. At the outset the learned AR contended that there was no substantive addition with respect to Rs. 1 crore in the hands of M/s Neotech Education Foundation for the year under consideration.Therefore, the question of making the addition on protective basis in the hands of the assessee does not arise. On the other hand, the learned DR vehemently supported the order of the authorities below. 245. We have heard the rival contentions of the parties and perused the materials available on record. The question of making protective and substantive assessment arises in a situation where income accrues in the hands of 2 different persons/assessee and the revenue does not have clarity in whose hand the same should be brought to tax. In such a situation, to protect interest of revenue, the AO makes the addition of the same income in the hands of 2 different persons. The addition in the hands of 1 of the party is made on substantive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-15 has been decided by us vide paragraph No. 234 of this order partly in favour of the assessee. The learned AR and the DR also agreed that whatever will be the findings for the assessment year 2014-15 shall also be applied for the year under consideration i.e. AY 2015-16. Hence, the grounds of appeal filed by the assessee is partly allowed. 251. The second issue raised by the assessee is that the learned CIT(A) erred in confirming the order of the AO by sustaining the addition of ₹ 46 Lacs out of the total addition of Rs.50 Lacs made by the AO. 252. At the outset, we note that the issues raised by the Assessee in its ground of appeal for year under consideration is identical to the issue raised by the assessee s husband Shri Pravin Patel in ITA No. 299/AHD/2019 for the assessment year 2015- 16. Therefore, the findings given in ITA No. 299/AHD/2019 shall also be applicable in case of the assessee on hand. The appeal of Shri Pravin Patel for the assessment 2015-16 has been decided by us vide paragraph No. 208 of this order in favour of the assessee. The learned AR and the DR also agreed that whatever will be the findings given in case of Shri Pravin Patel shall also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of return are not sufficient to hold that the assessee has discharged the onus cast u/s.68 of the Act, however, the appellant has submitted the copy of bank statement of Shri PankajIshwarbhai Patel (ICICI Bank S/B A/c 0830175126) which evidences the identity and capacity of the lender. The lender is claimed to be an NRI and therefore not a filer of ITR in India. During the appeal proceedings, the appellant has verbally narrated the reasons of hostile attitude of the lender which is coming in way of obtaining the loan confirmation of the lender and that because of the same bad relationship the loan had to be repaid also. According to me, the furnishing of loan confirmation appears beyond her capacity now and in the circumstances, it would not be fair to hold that the loan was non-genuine merely in absence of loan confirmation and IT return. It was possible for the AO to obtain the response of Shri PankajIshwarbhai Patel and to ascertain whether thesubmission of the appellant is false. Accordingly, the loan is treated to be explained and the addition of Rs.1,24,00,000/- is directed to be deleted. The appeal succeeds on this ground. 18.6 As to the claim of loans of Rs.8,50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. ii. Deletion of the deposits of Rs.59 Lacs in the HDFC Bank account of the assessee. 263. With respect to the deletion made by the learned CIT (A) for the amount credited in the ICICI bank for Rs.1.24 crores, we note that this amount was received by the assessee from his relative based in abroad which was repaid in the subsequent assessment year. The acceptance of loan and the repayment of loan has not been doubted by the authorities below. The addition was made on the reasoning that the assessee failed to furnish the confirmation and the copy of the ITR of the party who is based in abroad. Insofar the copy of the ITR is concerned, we note that the party based in abroad is liable to file his income tax return when he has the income taxable in India. The revenue has not brought anything on record suggesting that the loan party was having any taxable income in India. Thus in the absence of return of income in the given facts and circumstances no adverse inference can be drawn against the assessee. Furthermore, the assessee has produced the bank statement of the party maintained with ICICI bank, Vadodra wherein sufficient balance was available for advancing loan to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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